Busan District Court-2014-Gu Partnership-2172 (Law No. 13, 2015.08)

A person who holds a medical license jointly with a person who holds a medical license not to run a dental clinic, shall be an actual operator;

In the case of a married person or qualified medical person under the Medical Service Act, the actual operator is in a marital relationship with a person qualified as a doctor, and the disposition of imposition of the value-added tax in this case on medical

Article 12 of the Value-Added Tax Act / [Tax Exemption]

2015Nu22547 Revocation of Disposition of Imposition of Value-Added Tax, etc.

AA, BB

CC director of the tax office

on October 26, 2016

on October 18, 2016

1. The part of the judgment of the court of first instance against the Plaintiff AA, which constitutes the part of the lower judgment ordering revocation, shall be revoked. The Defendant’s imposition of value-added tax on July 3, 2013 and August 13, 2013 against the Plaintiff AA shall be revoked on August 3, 2013.

2. All remaining appeals by Plaintiff AA and Plaintiff BB are dismissed.

3. Of the total litigation costs incurred between the plaintiff A and the defendant, 6/10 of the total litigation costs incurred between the plaintiff A and the defendant are borne by the defendant, and the appeal costs incurred between the plaintiff BB and the defendant are borne by the plaintiff B.

The judgment of the first instance court shall be revoked. The disposition imposing value-added tax on July 3, 2013 and August 13, 2013, which the Defendant rendered to the Plaintiff AA (hereinafter referred to as “instant disposition imposing value-added tax”) and the disposition imposing gift tax (hereinafter referred to as “instant disposition imposing gift tax”) on the attached Table 1. The Defendant revoked the part exceeding 1/2 of the disposition imposing value-added tax on the Plaintiff BB on August 8, 2013 as stated in the attached Table 1 attached hereto, which was rendered against the Plaintiff BB (hereinafter referred to as “instant disposition imposing global income tax”).

1. Details of the disposition;

A. On April 2013, Busan regional tax office conducted an integrated investigation into Plaintiff AA and a gift tax investigation into Plaintiff BA, and notified the Defendant of the assessment data after conducting an integrated investigation into global income tax, with respect to Plaintiff BB.

B. Accordingly, on July 3, 2013 and August 13, 2013, the Defendant imposed the instant imposition of value-added tax and the instant gift tax on the Plaintiff AA. On August 8, 2013, the Defendant imposed the instant imposition of global income tax on the Plaintiff Kim U.S. (hereinafter collectively referred to as “each of the instant dispositions”).

C. On September 2, 2013, the Plaintiffs dissatisfied with each of the instant dispositions, filed an appeal with the Tax Tribunal on September 2, 2013, and the Tax Tribunal ordered the Defendant to conduct a reinvestigation. On April 9, 2014, the Defendant issued a decision of correction and notification with the same content as each of the instant dispositions to the Plaintiffs.

【Matters in which there is no dispute over recognition, evidence Nos. 1, and evidence Nos. 1, 2, and 12, the purport of the whole pleadings.

2. Plaintiffs’ assertion, relevant statutes, and facts of recognition

1) The instant disposition imposing value-added tax is unlawful on the following grounds.

① Although Plaintiff AA is not an actual operator, Plaintiff AA was subject to the imposition of value-added tax on the premise that Plaintiff AA is a business operator.

"② 부가가치세법은 의료인 아닌 자가 병원을 운영하면서 의료인을 고용하여 의료용역을 공급할 경우에 비의료인에게 부가가치세를 부과하도록 과세요건을 정하고 있지 아니할 뿐만 아니라，부가가치세 부과가 문제된 사업장인 부산 해운대구 소재 □□의원(개업 당시인 2009. 7. 1.에는 상호가 '■■였는데, 2012. 7. 1. 현재의 상호로 변경되었다. 이하제1사업장'이라 한다) 소속 의사들인 A1, A2 등이 실제로 의료 용역을 제공한 이상 부가가치세 면제 대상에 해당함에도 불구하고 원고 AAA에게 부가가치세를 면제하지 아니하였다.",2) 이 사건 증여세 부과처분 또한 다음과 같은 이유로 위법하다.

"① 증여세 부과가 문제된 각 부동산의 소유 명의자가 원고 AAA이기는 하나, 위 각 부동산의 실제 소유자는 원고 BBB이고 단지 원고 AAA 앞으로 명의신탁된 것이며, 자금 출처 또한 원고 BBB이 운영하는 사업장인 부산 남구 대연동 소 재 ■■의원(이하제2사업장'이라 한다)의 수입이다. 또한 원고들이 부부인 관계로 관리의 편의상 원고 AAA 앞으로 명의신탁한 것이므로 조세 회피 목적이 없어 명의신탁재산의 증여 의제가 이루어질 수도 없다.",② 설령 명의신탁이 아니라 하더라도, 원고 AAA은, 원고 BBB이 운영하는 제2사업장에서 사무장의 지위에서 제반 행정업무를 수행하고 월 7,000,000원의 보수를 받았으므로 위 각 부동산 자금 원천 중 원고 AAA의 기여 부분은 공제되어야 한다.

B. Plaintiff BB’s assertion

Plaintiff BB operated only the second place of business until August 16, 2009 for health reasons, and thereafter, Plaintiff AB operated the second place of business jointly with Plaintiff B1, B2, and A2. However, even after August 17, 2009, Plaintiff BB operated the second place of business, it was unlawful to impose the global income tax of this case on Plaintiff BB on the premise that all income accrued therefrom belongs to Plaintiff BB.

C. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

(d) Facts of recognition;

1) Part of the first place of business

A) On July 1, 2009, the first place of business was a medical institution establishment and business registration under the name of a doctor A1 on July 1, 2009, and has been operated again under the name of a doctor A2 on February 25, 2010. However, doctors A1 and A2 merely invested a part of the amount and invested in the medical treatment and did not participate in the specific business affairs of the establishment and operation. Meanwhile, after the first place of business was established, Plaintiff BB did not work almost at work, and Plaintiff AB, the spouse, was in charge of all administrative affairs, including the amount of medical treatment management and the payment of wages to employees, etc.

B) While managing the amount of medical income in the first place of business, the Plaintiffs omitted the return on the total amount of KRW 4,109,000,000,000, which was paid to the account in the name of employees A3, etc. as shown in the following table.

C) On November 20, 2014, Plaintiff AA was sentenced to imprisonment for eight months and two years of suspended sentence for a crime that evades global income tax of KRW 400,000,000 in the course of operating the first place of business at the Busan District Court (2014No000) on November 20, 2014, with respect to the omission of the above income return. The judgment became final and conclusive as it was against the period for filing an appeal on November 28, 2014.

D) In addition, Plaintiff A2 and B, a non-medical person, was indicted on the ground that the first place of business was in violation of the Medical Service Act by opening the first place of business, which is a medical institution. The first place of business, was entirely in charge of funding management and administrative procedures, etc., from the time of the establishment of the first place of business, and even after the establishment of the first place of business, Plaintiff BB did not work properly to Plaintiff BA while serving to the first place of business, it is difficult to view that Plaintiff BA entrusted overall matters concerning the establishment and operation of the first place of business to the position of Plaintiff BB’s spouse, and the first place of business was established with Plaintiff B, and Plaintiff B appears to have been acquitted of the first place of business due to Plaintiff B’s non-medical person’s lack of sufficient evidence that Plaintiff B had participated in the process of establishing the first place of business with Plaintiff B’s first place of business and its first place of business, and the first place of business was established with Plaintiff B’s first place of business and the second place of business.

E) Meanwhile, the doctor A4 who had worked as a medical specialist at the first workplace filed a lawsuit against the doctor A2 and the Plaintiff A4 seeking retirement allowance, etc., and the court of first instance (Seoul District Court 2013Gahap0000) rejected the above claim against the Plaintiff A4 on the ground that it is difficult for the Plaintiff A4 to be deemed as an employer of the Plaintiff A4, on the ground that the appellate court rendered a judgment dismissing the appeal on January 20, 2016 from the appellate court to dismiss the appeal by the first instance court (Supreme Court 2015Da201620). The doctor A2 operated the first company head as the representative director, and the Plaintiff AA was not the head of the management office while taking charge of financing, administrative procedure, etc. at the first workplace, and the relationship between the Plaintiff AA and the Plaintiff BB as an employee.

2) Part of the second workplace

A) On September 5, 2005, Plaintiff BB had established a medical institution and registered its business under the name of Plaintiff BB. Since August 17, 2009 to December 31, 201, Plaintiff BB entered into a business transfer agreement with Plaintiff B-3 to transfer the secondary business place to KRW 300 million between Plaintiff B-B and Plaintiff B-3 on March 9, 201, and thereafter Plaintiff B3 operated the secondary business place. On the other hand, Plaintiff B-A was in charge of all administrative affairs, including medical care management and payment of wages to employees.

B) From 2008 to 2011, an income return equivalent to KRW 4,967,343,000 was omitted from among the medical income amounts that were punished by the operation of a secondary workplace.

"다) 한편 원고 BBB은 2010. 4. 1. 울산 남구 삼산동에 제2사업장의 상호와 동일한■■'로 의료기관 개설 및 사업자 등록하였다가 2010. 7. 16. 폐업하였다.",3) 원고 AAA 명의의 부동산 취득 부분

(A) From 2006 to 2010, Plaintiff AA acquired each real estate and real estate sales rights (hereinafter referred to as “each of the instant real estate”) under its own name as indicated in the table below, and repaid the total amount of the loan after obtaining bank loans for the payment of the total amount of the loan. B) The real estate No. 2 is used by Plaintiff AA’s parents for residential purpose after the remainder payment. The real estate No. 3 is used for the real estate rental business operated by Plaintiff AA on March 25, 2009.

[In the absence of dispute over recognition, Gap evidence 3-3, evidence 4-4, evidence 5-5, Eul evidence 3, 7 through 10, 13, 19, 21 and 22, and the purport of the whole pleadings

3. Determination on the legitimacy of each of the dispositions of this case

A. Whether the disposition of value-added tax of this case is legitimate

1) Determination on the business operator’s assertion

According to the above facts, the facts found guilty of the facts charged by the plaintiff AA while operating the 1 workplace, and the facts that the plaintiff AA was found guilty of having evaded comprehensive income tax, and the facts that the plaintiff AA had been in charge of all administrative affairs, including the management of funds at the 1 workplace, are recognized. However, considering the above facts and the following facts and circumstances recognized by the overall purport of the statement and the evidence Nos. 3-2, 37, and 5-2, 37, and 5, the plaintiff AA merely performed the administrative affairs at the 1 workplace on behalf of the plaintiff BB, i.e., the 1 workplace business operator., the 1 workplace business operator. Therefore, the above argument by the plaintiff AA is reasonable, and the disposition of the value-added tax in this case is unlawful as it fails to meet the taxation requirements (taxpayer) and thus should be revoked.

① As seen above, in the case of violation of the Punishment of Tax Evaders Act, Plaintiff AAA appears to have been convicted of having been actually convicted of having evaded the comprehensive income tax as the business operator of the first place of business. However, even if Plaintiff AA asserted that Plaintiff BB was the business operator of the first place of business and he was in charge of all administrative affairs on behalf of Plaintiff BB, Plaintiff AA was in a position not to be punished as an accomplice for the crime of violation of the Punishment of Tax Evaders Act, i.e., evading the global income tax of Plaintiff BB, and where the conviction of Plaintiff BB became final and conclusive, it would be difficult to recognize Plaintiff AA as the business operator of the first place of business in this case on the sole basis that Plaintiff AB was led to the confession of Plaintiff BB as the business operator of the first place of business and the conviction became final and conclusive.

② Since then, in the case of violation of the Medical Service Act in which Plaintiff A2, etc. established a 1 workplace in collusion with Plaintiff A2, the judgment of innocence was finalized on the grounds that there is no evidence to acknowledge it, such as the above 2.d. (d)(1), and in addition, in the case where Plaintiff A4, a doctor who worked at the 1 workplace, claims retirement allowance, etc. on the premise that Plaintiff AA is an operator of the 1 workplace, i.e., the 2.d.(1) in the case where Plaintiff A4 claims retirement allowance, etc. on the premise that she is an employer, i.e.

③ A1’s intention to lend the name of the business entity of the first place of business was the president of the second place of business, and the first place of business was known to be the same as that of the Plaintiff BB because the Plaintiff AB had been the representative director, and the first place of business had been aware that the Plaintiff BB had been registered as the joint representative, and that there was no employee employed by the Plaintiff AB (No. 5), and the first place of business was also the intention to lend the name of the business entity of the first place of business to the Plaintiff A2, not that of the Plaintiff A2, and that the Plaintiff did not appear to have invested the shares and operated the business jointly with the Plaintiff BB. (No. 37 of the evidence No. 37), and that the first place of business was decided to work after the Plaintiff BB and the first place of business did not appear to have been in charge of the Plaintiff’s work on behalf of the Plaintiff BB, and that it was difficult for the Plaintiff BB to understand that the Plaintiff’s first place of business did not have been in charge of the Plaintiff BB’s work.

④ On the other hand, the first and second businesses are basically identical in their operational methods in that Plaintiff AB provided medical services in the name of its doctor and dealt with all administrative affairs (see subparagraph 6, in the case of Plaintiff AB businesses). The second businesses are Plaintiff BB businesses, and the first businesses are in violation of logical rules and experience to determine that Plaintiff AB was unaware of each other. Rather, in light of the fact that Plaintiff BB led the establishment of the first businesses, such as the input of KRW 500 million out of profits which Plaintiff B is punished in the operation of the second businesses, into the funds for the establishment of the first businesses, the operation of the first businesses is more persuasive than that of Plaintiff BB businesses as independent of Plaintiff BB, and rather than that of Plaintiff BB businesses, Plaintiff AA, the husband of which was a partner, operated the first businesses and operated the first businesses on behalf of Plaintiff B.

⑤ The Defendant asserts that, as the medical personnel cannot establish multiple medical institutions under the Medical Service Act, Plaintiff BB operated the 2nd workplace and Plaintiff AB operated the 1st workplace. As seen earlier, all the 1st and 2nd workplaces reported the establishment of a medical institution under the name of the doctor to which they belong, and the reason was to evade the Medical Service Act provisions that no more than a number of medical institutions can be established. Accordingly, as long as the medical personnel evaded the provisions of the Medical Service Act, the Defendant’s assertion is not persuasive.

2) As above, insofar as the disposition of the instant value-added tax should be revoked on the grounds of Plaintiff AA’s assertion on Plaintiff AA’s 1 workplace business operator, the remaining arguments of Plaintiff AA cannot be further determined.

B. Whether the imposition of gift tax of this case is legitimate or not is determined as to the assertion on title trust

The burden of proving the existence of a taxation requirement fact is at the tax authority, but if it is proved that the other party is presumed to have a taxation requirement in light of the empirical rule, it is necessary to prove the circumstances that the other party would not be subject to the application of the empirical rule, and under Article 830(1) of the Civil Act, real estate acquired by one spouse in the name of the other spouse, not the nominal owner, is presumed to be the special property of the nominal owner. Thus, if the source of acquiring the real estate is clearly identified to be the other spouse, the nominal owner may be deemed to have received a donation of acquiring fund from the spouse. In this case, the fact that the real estate concerned cannot be deemed to have been donated because it is not the special property of the nominal owner, but the title of the other spouse, not the special property of the nominal owner, and thus, it shall be proved by the taxpayer who asserts it (see Supreme Court Decision 2006Du8068, Sep. 25, 2008). Meanwhile, the burden of proving that there was no tax avoidance purpose in relation to the donation of the nominal property (Supreme Court Decision 2007Du.

Pursuant to the above legal principles, comprehensively taking account of the facts as seen earlier, Eul evidence Nos. 7 through 10, Eul evidence Nos. 12 and 13 as well as the following circumstances acknowledged by the overall purport of the arguments and arguments, each of the parts of this case which Plaintiff AA acquired during marriage with Plaintiff BB shall be presumed to be the unique property of Plaintiff AA, and as provided by Article 45(1) of the former Inheritance Tax and Gift Tax Act (amended by Act No. 10411, Dec. 27, 2010) (amended by Act No. 10411, Dec. 27, 2010), when Plaintiff A acquired each of the properties of this case, it shall be deemed that Plaintiff B was donated KRW 2,767,799,610 from Plaintiff BB to the sum of the funds to acquire the properties of this case. Meanwhile, even if Plaintiff B’s evidence No. 6 alone did not have any other evidence to acknowledge that Plaintiff B acquired the properties of this case, the lack of evidence to acknowledge’s title trust.

① The donation period of each real estate acquisition fund of this case is over the period from December 4, 2006 to February 11, 2010. The sum of revenues reported by the Plaintiff AA from 2000 to 2008 is over 8.00.00 billion won, and the Plaintiff AA merely takes charge of administrative work at the first or second workplace, and it is difficult to find that Plaintiff AA acquired each of the instant real estate of this case with its own ability in view of its occupation, age, income, and property status.

② In addition, Plaintiff AA does not provide any specific data that can be recognized as the source of funds in the process of acquiring each of the instant real estate.

③ 반면에, 원고 BBB은 2005. 9. 5. 제2쟁점사업장을 자신의 명의로 개설하여 지속적으로 수입을 얻어 왔고，특히 2008년 912,000,000원 상당, 2009년1.375.000. 000� 상당, 2010년 1，169,000,000원 상당，2011년 1,511,000,000원 상당 등 합계 4,967,000,000원 상당의 진료수입금을 지속적으로 신고 누락하였으므로 이 사건 각 부동산의 취득자금을 제공할 만한 재산을 보유하였던 것으로 보인다.

④ In part of the instant real estate, the parents of Plaintiff AA reside in the instant real estate, and other part of the instant real estate are transferred to the company owned by Plaintiff AA and provided for the company’s purpose, so it is difficult to view it as a simple title trust.

⑤ As seen earlier, the Plaintiffs evaded comprehensive income tax in relation to the income accrued at the 1st place of business, and Plaintiff BB had the power to evade comprehensive income tax in relation to the income accrued at the 2nd place of business. As seen thereafter, it is highly probable that the purpose of tax evasion was also an important factor in acquiring each of the instant real estate in the name of Plaintiff AA.

2) Determination as to the assertion of partial deduction of contributions

In full view of the following circumstances that are recognized by the respective descriptions, and evidence Nos. 7 through 10, and 13, the source of each real estate acquisition fund of this case shall be the income of Plaintiff BB as seen earlier, and therefore, Plaintiff AA’s assertion on this part is without merit.

① There is no evidence to acknowledge that the Plaintiff AA was paid a monthly remuneration of KRW 7,000,000 while working at the second workplace.

② Since the first place of business has concentrated since the date of donation of funds to acquire real estate in this case from the second place of business since the date of donation, it is difficult to view that each of the real estate in this case falls under the acquisition funds of this case.

(3) Even if part of the revenue of the first place of business was used as the real estate acquisition fund (loan, etc.), and as seen earlier, insofar as Plaintiff AA cannot be seen as a business operator of the first place of business, it cannot be deemed that Plaintiff A contributed to the real estate acquisition fund of this case.

C. Whether the instant disposition of global income tax was lawful

Considering the above facts and the following circumstances acknowledged by the respective statements and the purport of evidence Nos. 5, 15, and 20, Plaintiff BB operated the second place of business after August 17, 2009, and thus, Plaintiff BB’s argument on the disposition of global income tax of this case is without merit.

① The Plaintiff BB used the English name “D. 00” in the second place of business, and Plaintiff AB submitted to the Defendant a certificate of confirmation (Evidence 15) verifying the monthly total revenue in 2011 at the second place of business on behalf of Plaintiff BB, and the monthly medical revenue details attached to the above certificate are described as “D. 000”. ② ② The Plaintiff B1 and B2, A1 et al., which were worked at the second place of business, were written to the effect that Plaintiff BB actually treated at the second place of business, and the final judgment of the case of violation of the Medical Service Act against Plaintiff A et al. is identical.

③ The Plaintiff BB entered into a contract to transfer the second workplace to the doctor B3 in its own name, with the content that it would transfer the second workplace to KRW 300,000,000,000. At the time of transfer, the Plaintiff BB agreed to pay the total amount of retirement allowances for nurses and assistant nurses incurred prior to the transfer and the fourth insurance and monthly salary.

④ In addition, the Plaintiff B entered into a contract with the doctor B1 to pay fixed wage and incentives on the condition that the doctor B1 lends the name of establishing a medical institution to the second workplace, and the Plaintiff B tried to expand the Council members to Ulsan Nam-gu during the operation period of the second workplace.

⑤ The taxpayer should prove that there was a separate expense corresponding to the omission in sales, and there is no evidence to acknowledge that the Plaintiff AA was paid the remuneration of KRW 7,000,000 per month at the second place of business.

4. Conclusion

Therefore, the disposition of this case on the imposition of value-added tax against the plaintiff AA among each disposition of this case is unlawful, and thus it should be revoked. Since the part against the plaintiff AA, which corresponds to the cancellation part of the judgment of the court of first instance, is unfair, the part against the plaintiff AA, which corresponds to the cancellation part of the judgment of the court of first instance, is revoked partially, and the remaining appeal of the plaintiff AA and the appeal of the plaintiff B BB, are dismissed as all of